Judge: Elaine Lu, Case: 23PSCV01581, Date: 2023-09-26 Tentative Ruling
Case Number: 23PSCV01581 Hearing Date: January 10, 2024 Dept: 26
Plaintiff’s counsel, M. Lawrence Lallande (“Counsel”),
moves to be relieved as counsel of record for Plaintiff Samuel Castorena (“Client”). Counsel filed the instant motion to be
relieved as counsel on November 20, 2023.
Counsel has filed form MC-051 and two
declarations in support of the instant motion.
Counsel filed the first filed declaration in conjunction with the motion
and the second on January 5, 2024.
However, Counsel has failed to use the mandatory declaration form on
MC-052 and the mandatory proposed order form on MC-053. “The motion to be relieved as counsel must be
accompanied by a declaration on the Declaration in Support of Attorney's
Motion to Be Relieved as Counsel--Civil (form MC-052).” (Cal. Rules of Court, Rule 3.1362(c).) “The
proposed order relieving counsel must be prepared on the Order Granting
Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053) and must
be lodged with the court with the moving papers.” (Cal. Rules of Court, Rule 3.1362(e).) The use of mandatory judicial counsel forms
is required by all parties. (In re
Marriage of Sharples (2014) 223 Cal.App.4th 160, 166 [“Mandatory judicial
forms ‘must be used by all parties’”]; Cal. Rules of Court, Rule
1.31(a); Gov. Code, § 68511.)
However, Counsel has included the
necessary information in the provided declaration. As such, the Court finds Counsel’s failure to
use the mandatory declaration form (MC-052) a minor defect not itself
warranting denial of the instant motion.
(Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th
1128, 1133 [“The determination whether to grant or deny a motion to withdraw as
counsel lies within the sound discretion of the trial court.”].)
Counsel states that he is in
the process of winding down his law practice, and Client’s file is the only
remaining active case. All of Counsel’s other
cases have been transitioned. (Lallande
11/20/23 Decl. ¶¶ 2-3.) Counsel states
that he met with Client and Client’s son on October 28, 2023 and November 10,
2023 discussing the situation with Client and urging Client to seek
representation and that if Client did not obtain new representation that
Counsel would file the instant motion to be relieved. (Lallande 11/20/23 Decl. ¶¶ 4-5.) At the first meeting, Client confirmed his
mailing and email address. (Lallande 11/20/23
Decl. ¶ 4.) On November 20, 2023,
Counsel served Client the instant motion by email and first class mail. (Lallande 11/20/23 Decl. ¶ 6.) On January 5, 2024, Counsel spoke with Client
over the phone and again informed Client of the instant motion. (Lallande 1/5/24 Decl. ¶ 7.) Client has not provided any information
regarding other legal counsel, and Counsel is unaware of any new representation
for Plaintiff. (Lallande 1/5/24 Decl. ¶
8.) Counsel also served this motion on all
other parties in the case.
Prior to the hearing, Counsel is ordered
to electronically file and email to Department 26 a proposed order on form
MC-053. Based on the notice of motion and the declaration filed by counsel, the
Court is inclined to grant the motion. However, the Court will not grant the
instant motion until Counsel has lodged with the Court a proposed order on
Judicial Council form MC-053.
The proposed order must list Client’s current
mailing address for service, email address, and phone number in item 6.
The proposed order must also identify all
upcoming hearings and list the address of the Court in all items. The Court’s records show the following
upcoming hearings, which should all be listed in the proposed order:
- In item 7 (next
scheduled hearing): “Order to Show Cause re: Sanctions for Failure to File
Proof of Service on Defendant Kubota Corporation; and Case Management
Conference set for February 7, 2024 at 8:30 am at 111 N. Hill St., Dept. 26, L.A.,
CA 90012.” In Item 7, Counsel must also
include the following language: “No later than five days prior to the OSC,
Plaintiff must file a declaration explaining why monetary sanctions of at
least $500 should not be imposed and why the entire action should not be
dismissed for failure to serve all named defendants, including Kubota
Corporation. Client’s failure to appear
at the 2/7/24 hearing may result in monetary sanctions being awarded against
Client and/or dismissal of the instant action.”
- In
item 8 (additional hearings): “Defendant Quinn Company’s motion to strike
portions of Plaintiff’s First Amended Complaint set for April 11, 2024 at 8:30
am at 111 N. Hill St., Dept. 26, L.A., CA 90012.” In Item 8, Counsel must also
include the following language to explain the nature of the OSC re Dismissal:
“Failure to file a timely written opposition or failure to appear at the April
11, 2024 hearing may result in the Court granting the motion.”
- Item 13: “Moving Counsel is ordered to serve all
parties, including Client, with a copy of this signed order and file proof of
service of such within three days.”
Counsel
is responsible for determining if there are any other hearings scheduled or due
dates for discovery for this case, including any motions hearings, which must
all be listed in the proposed order. For
each hearing, Counsel must state the date, time, and location of the hearing
including the address and Department number as follows: “111 N. Hill St., Dept.
26, L.A., CA 90012.” For each due date
for discovery, Counsel must identify the nature of the discovery responses that
are outstanding, the due date, and the address where verified responses must be
sent.
Provided that Counsel has electronically
filed and emailed a proposed order at or before the hearing on this motion, the
motion to be relieved as counsel will be granted. Otherwise, the motion will be denied without
prejudice.
Counsel should note that after the order
is signed, the order will only become
effective upon the filing of a proof of service of a signed copy of the order
on Plaintiff. Counsel will remain the attorney of record until Counsel files
with the Court proof of service of the signed order. Counsel will be ordered to
serve a copy of the signed order (MC-053) on Plaintiff within three days.
Moving Counsel is ordered to provide
notice of this order and file proof of service of such.